The Supreme Court’s decision in the Oklahoma lethal injection case on the final day of the term [June 29] went pretty much as expected. Justice Samuel A. Alito Jr. spoke for the conservative majority in rejecting the challenge. In oral argument, Alito had declared that the challenges about the specific drugs used in lethal injections amounted to “guerrilla warfare” by death penalty opponents in the face of legislative and judicial approval of capital punishment.
Justice Sonia Sotomayor spoke for the four liberal justices in dissent. Sotomayor had bluntly told the state’s lawyer that she did not believe what he was saying. And she made clear her view that inmates would suffer excruciating pain during the executions because the drug Oklahoma planned to use to render them unconscious would not actually work.
However predictable, the reading of the two opinions in Glossip v. Gross was high courtroom drama. Alito denounced in advance what he called Sotomayor’s “outlandish rhetoric.” Sotomayor followed by likening Oklahoma’s flawed lethal injections to being burned alive at the stake.
But there was more to come: a genuine surprise from the court’s senior liberal justices, Stephen G. Breyer and Ruth Bader Ginsburg. In a rare reading from the bench of a second dissenting opinion, Breyer announced that he and Ginsburg were ready to find the death penalty unconstitutional altogether.
Breyer’s 41-page dissent, longest of the five opinions in the case, lays out point by point a solid argument against capital punishment as practiced for the last four decades. The Supreme Court ruled the death penalty unconstitutional in 1972 as then administered. Four years later, the court allowed capital punishment to resume but under guidelines intended to cure the flaws from the past. “Forty years of experience with those procedures and protections,” Breyer declared from the bench, “shows that they do not work.”
Breyer speaks and writes from experience. During their long tenures, Supreme Court justices see more death penalty cases up close than any other individual public official: prosecutors, governors, or state or federal court judges. Year after year, the last-minute applications for stays of execution keep coming. And year after year the cases evidence a system that fails to deliver what the Supreme Court promises above its front entrance: equal justice for all.
For the first of four points, Breyer cited the proven unreliability of the death penalty system. “We now have persuasive evidence,” Breyer declared, “that innocent individuals have been executed and that more than 100 individuals convicted of capital crimes and sentenced to death have later been fully exonerated.” In addition, “the rate of procedural error in capital trials is alarming, well over 60 percent,” he said.
Justice Antonin Scalia, perhaps the most outspoken defender of capital punishment on the court, has insisted in the past that there is no evidence of an innocent person having been put to death in the United States. He chose not to debate the point in his nine-page reply to Breyer. Instead, he argued with hypertechnical textualism that a wrongful conviction does not implicate the Eighth Amendment’s prohibition against cruel and unusual punishments.
After unreliability, Breyer turned to his second point: arbitrariness. Despite best efforts, the death penalty system has failed to ensure that the ultimate punishment is reserved for only the most egregious of crimes. Numerous studies have shown that race, gender, and geography affect imposition of the death penalty more than “comparative egregiousness.” Breyer noted other, even more troubling factors: the limited resources for defense counsel and political pressure on judges, especially those up for re-election.
For a third point, Breyer pointed to the long delays between sentences and actual executions: an average of 18 years for executions carried out in 2014. The delays are cruel punishment of themselves, Breyer said, but they also undermine the legitimate justifications for the death penalty: deterrence or retribution. Long after the murder, an execution serves either purpose tenuously at most.
Scalia responded by blaming the delays on death penalty opponents and judges like Breyer sympathetic to death row inmates’ dubious claims. As rebuttal, Breyer noted that speeding up capital cases would risk increasing the error rate. Many of the documented exonerations came years or even decades later. “Administration of the death penalty can take place swiftly but unreliably or it can take place with long delays but without significant justifying purposes,” Breyer said. “We cannot have it both ways.”
As his final point, Breyer saw a waning of public support for executions. Among the 31 death penalty states, only seven carried out executions in 2014. In Texas, the number of new death sentences has fallen from 48 a decade and a half ago to only nine last year. And a detailed map shows that even in death penalty states death sentences are concentrated in a small number of counties: for example, Harris County (Houston) in Texas and Shelby County (Memphis) in my home state, Tennessee.
“We are a court, not a legislature,” Breyer concedes. But these issues, he says, are judicial matters that implicate the Eighth Amendment. The time has come, he and Ginsburg now say, for the Supreme Court to consider the question anew. Full briefing and argument would force the justices to confront the issues with what is expected of them: reasoned judgment, not political rhetoric.